In Jordan v. ER Solutions, Inc., — F.Supp.2d —-, 2012 WL 5245384 (S.D.Fla. 2012), Judge Dimitrouleas found no TCPA liability under the TCPA for auto-dialed calls to a debtor who had consented to be called at that number when she applied for credit, even though the debtor did not own the number.

 Jordan got into debt by shopping at Seventh Avenue, Inc. She completed two separate purchase orders for retail items, dated August 24, 2008, and July 17, 2009. At the time of purchase, she gave Seventh Avenue a phone number for contacting her. According to the terms and conditions of her purchase, by providing her number and agreeing to the purchase, Jordan consented to Seventh Avenue or its debt collection agents to contact her by automated phone calls. The terms and conditions were amended on July 1, 2010. The amendment removed the explicit permission for debt collectors to make automated calls Jordan, but retained permission for Seventh Avenue to do so. ¶  Jordan did not pay her bills to Seventh Avenue. She had an outstanding balance of $416.51. Because Jordan had not paid, Seventh Avenue assigned the account to ER, a debt collector. Seventh Avenue gave ER the phone number Jordan had provided. ER called Jordan repeatedly from December 2009 to November 2010. ¶  As it turns out, that phone number was not registered to Jordan. It was registered to her husband. It is part of a family plan, though. Jordan used the phone on a daily basis and paid the bills that are generated from using the phone.

Judge Dimitrouleas decided not to wade into the waters of whether the TCPA requires the ‘called party’ to be the cellular telephone owner, and simply held that the Plaintiff had consented to be called.

Next, ER argues that Jordan cannot make out a TCPA claim because she is not the subscriber to the phone plan-her husband is. This raises a sticky issue of whether the spouse of a subscriber to a phone plan can make out a claim and the law is not entirely clear on the issue. See Soppet v. Enhanced Recovery, 679 F.3d 637, 639–42 (7th Cir.2012) (suggesting that Jordan could not make out a claim because she was not the subscriber to the cell phone). Fortunately, this Court need not resolve the issue, because even assuming that Jordan could bring a TCPA claim, she provided consent to be contacted and therefore her claim fails anyway. ¶  The TCPA allows a collector to make automated or prerecorded collection calls if the called party has given prior express consent. 47 U.S.C. § 227(b)(1)(A). Jordan did give express consent to automated collection calls when she purchased items from Seventh Avenue in 2008 and 2009. As a term and condition of her purchase, she agreed that “[Seventh Avenue] and any other owner or servicer of this account may use any information you give us, including but not limited to e-mail addresses, cell phone numbers, and landline numbers …. to contact you for purposes related to this account, including debt collection. In addition, you expressly consent to any such contact being made by the most efficient technology available, including but not limited to automated dialing equipment and prerecorded messages, even if you are charged for the contact.” ¶  The Court finds that this provision demonstrates that Jordan gave prior express consent to be contact. ¶  Jordan responds, however, by arguing that the terms and conditions were modified on July 1, 2010. The amended provision is no longer captioned “Consent to Contact.” It was replaced by the following: COMMUNICATION: We may use contact information you provide to contact you from time to time regarding your Account. We may contact you in any manner consistent with the information you have provided. for example, once you have provided contact information, we may contact you by telephone, e-mail, or text message. We may use automated technology for the purposes of contacting you, including but not limited to automatic dialing or similar equipment. We may call you on your mobile telephone. We may monitor or record calls from you to us and calls from us to you. When you give us your mobile telephone number we may contact you at that number using automated dialing equipment and we can leave pre-recorded or other messages, as allowed by law. ¶  Even assuming that this modified contract applies retroactively to the purchases Jordan previously made, the change did not revoke Jordan’s consent. Under the original, debt collectors were explicitly allowed to contact Jordan. Under the revised term, Seventh Avenue still had Jordan’s express consent to contact Jordan. True, language regarding account servicers has been omitted. However, “calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.”   In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 564–65 ¶ 10 (Jan. 4, 2008). Even under the new term, Seventh Avenue could use debt collectors, because the collectors’ calls are treated as if Seventh Avenue made them, and Seventh Avenue had express consent to call Jordan. ¶  Even viewing the facts and law in the most gen-erous way for Jordan, she cannot succeed on her TCPA claim because she gave consent to be contact-ed. ER is entitled to summary judgment on her TCPA claim.